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COURT OF APPEALS DECISION DATED AND RELEASED November 28, 1995 |
NOTICE |
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A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 94-3115-CR
STATE
OF WISCONSIN IN COURT OF
APPEALS
DISTRICT I
STATE OF WISCONSIN,
Plaintiff-Respondent,
v.
ANDREZE M. TALLEY,
Defendant-Appellant.
APPEAL from a judgment
of the circuit court for Milwaukee County: PATRICIA D. McMAHON, Judge. Affirmed.
Before Sullivan, Fine
and Schudson, JJ.
PER
CURIAM. Andreze M. Talley appeals from a judgment of conviction,
after a jury trial, for attempted armed robbery, party to a crime, contrary to
§§ 943.32(1)(b) and 939.05, Stats.;
first-degree intentional homicide while armed, contrary to §§ 940.01(1)
and 939.63, Stats.; and
first-degree reckless homicide while armed, contrary to §§ 940.02(1) and
939.63, Stats. Talley presents two issues on appeal: whether the trial court violated his due
process rights by refusing to allow his counsel to argue self-defense during
closing arguments, where the trial court had previously decided not to give a
self-defense instruction to the jury; and whether the evidence was sufficient
to support the jury's guilty verdicts on the two homicides. Talley's argument on the first issue is
undeveloped and without citations to authority; therefore, we do not address
it. See State v.
Flynn, 190 Wis.2d 31, 39 n.2, 527 N.W.2d 343, 346 n.2 (Ct. App. 1994)
(court of appeals need not consider inadequately briefed arguments), cert.
denied, 115 S. Ct. 1389 (1995).
On the second issue, we conclude that there is abundant evidence in the
record to support Talley's convictions on the homicides. Accordingly, we affirm the judgment of
conviction.
On June 11, 1994, in the
early hours of the morning, police were dispatched to North 24th Place and
Keefe Avenue to respond to a report of shots being fired in the area. Officer Harold Young observed Henry Land[1]
discarding plastic bags containing marijuana and cocaine. Land informed Officer Young that someone may
have been shot at 2438 West Keefe Avenue.
Officer Young found Geraldine Talley, Andreze Talley's aunt, lying on
the ground with a fatal gunshot wound to the neck. Officer Young, under Land's guidance, found another individual,
Lawrence Perkins, who had suffered fatal gunshot wounds to the head. Talley, in the twenty-four hours preceding
the shooting, had smoked approximately one-quarter ounce of cocaine.[2] Talley had then gone to Pete's house, a/k/a
Anthony Perkins, just prior to the shooting to purchase more rock cocaine. Talley returned to Perkins's home later the
same morning, armed with a loaded .38-caliber revolver, intent on stealing more
drugs. Talley knocked on the door and
heard what he believed to be a pistol cocking before Perkins opened the
door. Talley pointed his gun at Perkins,
and when Perkins put his hand in his pocket, Talley fired two or three times at
Perkins. Talley proceeded to run
through the house, exiting toward 24th Place.
Talley heard gunshots while in the street and turned and fired in the
direction he thought they were coming from.
Talley's gunshots struck and killed his aunt who was standing at the
street corner. Talley was arrested,
charged and convicted.
In reviewing the claim
of insufficiency of evidence, we will not reverse a conviction unless, when
viewed in a light most favorable to the state, the evidence is so deficient in
probable value and force that, as a matter of law, no reasonable trier of fact
could have found the defendant guilty beyond a reasonable doubt. State v. Poellinger, 153
Wis.2d 493, 501, 451 N.W.2d 752, 755 (1990).
There is abundant evidence to support Talley's convictions on the two
homicides.
1. First-degree
intentional homicide of Lawrence Perkins
The elements of
first-degree intentional homicide are:
(1) causing the death of another person; and (2) doing so with
the intent of killing that person. See
§ 940.01(1), Stats. Talley's inculpatory statement to police,
which was presented to the jury, provides ample evidence to support his
conviction for the first-degree intentional homicide of Perkins. Talley went to Perkins's apartment to rob
him at gunpoint, waited while Perkins opened the door, and then immediately
fired two shots into Perkins's head at close range with a .38‑caliber
handgun. See State v.
Morgan, 195 Wis.2d 388, 441, 536 N.W.2d 425, 445 (Ct. App. 1995)
(“[T]he propinquity of [an] intentionally pointed gun to a vital area of [a
victim's] body raises the presumption of ... intent to kill.”). A reasonable jury could clearly convict
Talley based on this evidence.
2. First-degree reckless
homicide of Geraldine Talley
The elements of first-degree
reckless homicide are: (1) causing the death of another person;
(2) doing so by criminally reckless conduct, that is, committing actions
that create an unreasonable and substantial risk of death or great bodily harm,
and being aware that the conduct created such a risk; and (3) the
circumstances surrounding the death show utter disregard for human life. State v. Blair, 164 Wis.2d 64,
70‑71, 473 N.W.2d 566, 569 (Ct. App. 1991). The second element requires proof of both an objectively
unreasonable and substantial risk, coupled with the defendant's subjective
awareness of the risk. Wis J I—Criminal 1020, cmt. n.3.
To prove the “utter disregard for human life” element, the State need
only prove conduct that is imminently dangerous to human life and which evinces
a depraved mind. See State
v. Blanco, 125 Wis.2d 276, 280-81, 371 N.W.2d 406, 409 (Ct. App.
1985). Factors used to determine this
element include: “what the defendant was doing; why he was doing it; how
dangerous the conduct was; how obvious the danger was; and whether the conduct
showed any regard for human life.” Wis J I—Criminal 1345 at 2
(footnote omitted).
The evidence presented
to the jury clearly proves each element of first-degree reckless homicide. Talley came out of the house after shooting
Perkins, ran down the street, saw someone standing on the street corner, and
fired at that person. This criminally
reckless conduct shows an “utter disregard for human life,” and a reasonable
jury viewing such evidence could return a guilty verdict.
By the Court.—Judgment
affirmed.
This opinion will not be
published. See Rule 809.23(1)(b)5, Stats.
[1] Land testified that he had been with Perkins when Talley had purchased the two “rocks” from Perkins. Later, Land heard two gunshots as he was opening the door for Geraldine Talley, who had come over to borrow $10, and began to run, but could still identify Andreze Talley by physique as the individual who entered the apartment.